Newt’s Bad Precedents

“I’m not sure I understand how that works,” Bob Schieffer, of CBS, said to Newt Gingrich on “Face the Nation.” Gingrich was explaining how he would handle, or manhandle, judges who didn’t agree with him. In a debate a few days earlier, on Fox News, he had called America’s courts “grotesquely dictatorial”; he said that he had “warned” Supreme Court Justices to their faces that if “you keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.” He told Schieffer that he was ready to send the Capitol police to bring judges to Congress to explain their decisions, to abolish entire courts, and, as President, to put his hands over his ears and pretend that he didn’t hear rulings that he didn’t like.

Gingrich expounds on various theories so often and so grandiosely that it can be hard to know whether he is stating a policy or just making things up. But he seemed as serious about this as about anything. “Your folks said to me be sure and ask him about judges so I know this is something you want to talk about,” Schieffer said at the beginning of the segment. Gingrich also directed viewers to a paper they could find at Newt.org, which he’d put together

because I knew I was launching a topic that no other presidential candidate in modern time has launched. And I knew it had to be intellectually defensible.

The paper, which is more than fifty pages long (pdf), is much like Newt: skewed and self-important, its danger mitigated only by its lack of discipline, and seemingly constructed in the belief that anything will sound “intellectually defensible” if you add enough quotes from the Federalist Papers. (It’s also a bit hard to find on Newt.org, where the “Learn More” tab sends a person off to buy things at gingrichproductions.com.) Basically, he argues that the Supreme Court is acting in a close to criminal way when it disagrees with anything the Congress and President agree on, or rules on matters of national security or public safety, or arrives at a decision that is unpopular or against “the culture.” The same is true of the lower federal courts, in his view.

Gingrich’s list of what he calls “constitutional steps” to take against judges includes several questionable measures, like abolishing unaccommodating courts, but one item stands out: “Ignoring a judicial decision.” This is the one that most confused Schieffer. “How do you decide, how does the president decide what’s a good law and I’m going to obey the Supreme Court or what’s a bad law and I’m just going to ignore it?” he asked.

This may be the place to pause and note that Gingrich’s scheme makes little practical or legal sense, that it has been rejected by Republicans like Mike Mukasey, George W. Bush’s former attorney general (“It would lead us to become a banana republic, in which administrations would become regimes, and each regime would feel it perfectly appropriate to disregard decisions of courts staffed by previous regimes,” Mukasey told the Times; “That’s not what we are”); that he mangles key cases, from Dred Scott to Cooper v. Aaron (which he argues is the ur-text for the judicial usurpation of Presidential and congressional power, although, as PolitiFact notes, in rating Gingrich’s statement’s on “Face the Nation” “Mostly False,” it’s actually about state officials); that he cites an order Lincoln gave that is news to Lincoln scholars; that his whole approach is about as un-conservative as one could get, in terms of its scorn for the eleven score years of effort that has gone into the still unfinished project of perfecting our union and securing our liberties; and that there is a serious argument to be made that one shouldn’t drive oneself mad figuring out what this is all about, because Newt’s whole judicial plan is just a vector for code words to excite Republican primary voters (prayer in schools, pornography, gay marriage), and his campaign is going to implode anyway. (Dahlia Lithwick, eloquently containing her impatience, wonders if beating up on judges, who can’t fight back, simply appeals to him as a bully.) Given all that, why worry about Newt?

There are a few reasons. One has to do with those code words: it’s worth figuring them out, and engaging in the conversation to which Gingrich’s meanderings may only be an allusion. Iowa, after all, is a state in which three judges lost their jobs in a recall campaign after ruling in favor of gay marriage. Was it just historical clumsiness that led Gingrich to cite Cooper v. Aaron, which was decided in 1958, in a period of the Court’s great civil-rights cases, as the moment when the principle of judicial supremacy was arrived at, rather than Marbury v. Madison, or any of several landmark cases in between? Many of his lines about judicial “oligarchs” and the dictatorship of the “lawyer class” echo those heard in Southern statehouses in the fifties and sixties.

And then there is the question of history and its uses. What is notable about Gingrich’s foraging in our country’s annals is that he treats what some might view as low or at least troubling moments, such as Lincoln’s suspension of habeas corpus or Roosevelt’s court-packing scheme, as prizes—sources of comfort and encouragement. What should be admonitions are inducements, not just precedents but lodestars. That should give pause to any President—including the current one, in his countenancing of the National Defense Authorization Act, with its provisions on indefinite detention—who thinks that the situation he faces is a truly unique crisis that allows for a dodge of the rule of law. It might be useful to picture a Gingrich-like figure a hundred and fifty years from now, in a silvery jumpsuit or whatever they’re wearing then, bringing up Guantánamo as he defends the military commissions on Gliese-581d.

Gingrich’s second-favorite example of judicial overreach, after the Ninth Circuit rulings on religious speech in public institutions (overturned, incidentally, by the Supreme Court) is Boumediene v. Bush, which recognized that habeas corpus ought to be available to prisoners at Guantánamo. One of the spectres, in the discussion around Boumediene and other Bush-era detention cases, was the court’s decision, in Korematsu v. United States, deferring to an executive order for the internment of Americans of Japanese descent. (In an example of the plasticity with which he treats facts, Gingrich cites Korematsu, a case in which the Court did just what he says it should, as an example of the danger of unchecked judges.) A part of Korematsu that has endured is the passage, in Judge Robert Jackson’s dissent, in which he warned that, by going along with the argument of military necessity, the court was establishing a principle:

The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

Gingrich picks up those loaded weapons, wherever he can find them, and adds on sniper scopes and Teflon bullets. He also, in his distortions of the past, covers toy water guns with shoe polish and pretends that they are real. But sometimes a person armed with a fake still manages to rob a bank. And Newt is still in the race.

Photograph: AP Photo/CBS News, Chris Usher.

Amy Davidson Sorkin is a New Yorker staff writer. She is a regular Comment contributor for the magazine and writes a Web column, in which she covers war, sports, and everything in between.